2nd honker
June 30, 2016
News Picks from NYSDA Staff
News Picks


Affidavit of Errors Still Mandatory for Justice Court Appeals. The Court of Appeals has held that an affidavit of errors is a jurisdictional predicate to the perfection of an appeal from a justice court, even when a verbatim transcript is available from an electronic recording. People v Smith , 2016 NY Slip Op 04973 (6/23/2016). The Court relied on the plain language of CPL 460.10(3), holding that no other procedure was authorized and suggesting that the legislature must amend the statute to permit appeals based on transcribed electronic recordings. Although the Court stated that a transcribed recording could form the basis of an affidavit of errors, the statute demands that the affidavit of errors be filed within 30 or 60 days of the judgment. Because transcripts are not typically available that soon after judgment is entered, appellate counsel will need to seek extensions of time from the County Court or Appellate Term in order to incorporate a transcript into an affidavit of errors. The Chief Administrative Judge's Advisory Committee on Local Courts has previously endorsed legislation that would amend CPL 460.10 to eliminate the need for filing an affidavit of errors when the trial court proceedings were electronically recorded (proposal available here , at pp. 13-16).
Supreme Court Holds Evidence Found after Unconstitutional Stop is Admissible if Officer Discovers an Arrest Warrant. In a 5-3 decision delivered by Justice Thomas on June 20, 2016, the U.S. Supreme Court held that in the absence of flagrant police misconduct, an officer's discovery of a valid arrest warrant during an unconstitutional stop attenuates "the connection between the unlawful stop and the evidence seized ... incident to arrest," and consequently such evidence is admissible. Utah v Strieff, No. 14-1373. In Strieff, an officer stopped the defendant in a nearby parking lot after observing him exit a home under surveillance for suspected drug activity. The officer asked him what he was doing at the home and requested proof of identification. After learning from a police dispatcher that the defendant had an arrest warrant for a traffic violation, the officer arrested him and searched him, finding drugs and drug paraphernalia.
Applying the three factors set forth in Brown v Illinois (422 US 590 [1975]), the Court determined that, based on the discovery of an arrest warrant, this case falls under the attenuation exception to the exclusionary rule. While the first factor, "temporal proximity" between the stop and the discovery of the evidence, favored suppression, the majority determined that the second factor, the presence of "intervening circumstances," namely the discovery of an arrest warrant that was unconnected to and predated the unconstitutional stop, weighed overwhelmingly in favor of the State. Finally, the majority found that the third factor, "the purpose and flagrancy of the official misconduct," also weighed in favor of the State. Although the officer did not have a lawful basis for the stop, the Court found that his subsequent conduct was lawful. Also, the evidence did not suggest that the stop was a result of "systemic or recurrent police misconduct."
Justices Sotomayor, Kagan, and Ginsburg dissented. Justice Sotomayor's dissent (joined in part by Justice Ginsburg) begins with this warning: "Do not be soothed by the opinion's technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants--even if you are doing nothing wrong." Sotomayor offers numerous reasons for her conclusion that "nothing about this case is isolated." Outstanding warrants are common and police departments around the country have used outstanding warrants to stop people without cause. "[M]any innocent people are subjected to the humiliations of these unconstitutional searches" and while "[t]he white defendant in this case shows that anyone's dignity can be violated in this manner, ...it is no secret that people of color are disproportionate victims of this type of scrutiny." Justice Kagan's dissent, also joined by Justice Ginsburg, warns "So long as the target [of an unlawful stop] is one of the many of millions of people in this country with an outstanding arrest warrant, anything the officer finds in a search is fair game for use in a criminal prosecution. The officer's incentive to violate the Constitution thus increases ...."
Analysis of the opinion and its impact on police training and conduct can be found on many blogs and legal news sites. A few noteworthy discussions of the opinion include Orin Kerr's post on SCOTUSblog, former SDNY Judge Shira Scheindlin's article in the New York Law Journal, "Three Wise Women and the Constitution," and Tejas Bhatt's NAPD blog post, "Utah v. Strieff: Legalizing Illegal Stops."

Public Defense Measures Passed During the Legislative Session
. The legislative session that ended in the middle of June has brought the public defense community one step closer to long-needed reform. The Legislature passed several bills that, if signed by the Governor, will help public defenders around the state provide clients with high quality representation.
  • Legislature Streamlines Procedure for Poor Person Status on Appeal
The Assembly and Senate have passed legislation ( A9522 ) authorizing sentencing judges to grant poor person status on appeal when the defendant is represented by appointed counsel in the trial court. The new CPL 380.55 requires counsel to "represent that the defendant continues to be eligible for assignment of counsel and that granting the application will expedite the appeal." Denial of the application is without prejudice to the defendant seeking poor person status in the appellate court.  The bill will become effective immediately upon the Governor's approval.    
  • Public Defense Mandate Relief Act
This bill ( S8114/A10706 ) requires the state to provide incremental reimbursement to counties for the cost of mandated representation. In the state fiscal year beginning on April 1, 2017, the state shall provide reimbursement for not less than 25% of the expenses for providing counsel and services other than counsel. The percentage reimbursement increases by 10% each of the next five years and full reimbursement will be provided starting in the fiscal year beginning on April 1, 2023.
In addition to reimbursement, the bill also requires that counties and NYC receive an amount equal to the amount paid from the Indigent Legal Services Fund to the counties and NYC in March 2010.
Finally, the bill gives the Indigent Legal Services (ILS) Office the authority "to adopt, promulgate, amend or rescind rules and regulations to carry out the provisions of [Executive Law 832], including to (i) ensure the presence of counsel at the first appearance of any eligible defendant charged with a crime, (ii) establish caseload/workload regulations for attorneys providing mandated representation, and (iii) improve the quality of mandated representation."
NYSDA's press release about the bill is available here . Additional news releases and articles about the Act are available on NYSDA's homepage, www.nysda.org .
  • ILS Office to Receive County Law 722-f Annual Reports
Part B of the bill ( A7292-C ) amends County Law 722-f to provide that the annual financial reports required by that section will be submitted to the ILS Office, not the state comptroller.
  • Authorization for Off-Hours Arraignment Parts Outside NYC
The bill ( S7209-A ) authorizes the Chief Administrator of the Courts to adopt (after consultation with the ILS Office, institutional providers of criminal defense services and other members of the criminal defense bar, the district attorney, the local magistrates association, and others) a plan for creating off-hours arraignment parts "where the use of such parts will facilitate the availability of public defenders or assigned counsel for defendants in need of legal representation at such proceedings." The bill will take effect on the 90th day after the Governor's approval.
OCFS Adopts Emergency Rule in Response to Phillips v Orange County. The New York State Office of Children and Family Services (OCFS) has issued an emergency/proposed rule that amends section 432.3 of Title 18 NYCRR to require school districts to allow county Department of Social Services (DSS) investigators access to interrogate children who are the subjects of a report of child abuse or neglect (as well as siblings or other children residing in the same home as the subject) without parental consent. This amendment is a response to the "confusion" that arose in school districts after the decision in Phillips v County of Orange (10-cv-00236 [SDNY]).The Phillips court deemed the questioning of a child at school, under the circumstances described in the oral decision, an unconstitutional seizure and granted the parents' motion for summary judgment. The Phillips decision was reported in the October 6, 2015 issue of News Picks. Subsequently, as reported in the April 19, 2016 issue of News Picks, OCFS distributed a memorandum (16-OCFS-LCM-05) addressing the Phillips decision in which it denied that Phillips had any precedential value, but enumerated factors that should be considered before a seizure of this type is to occur. According to the rule making notice, OCFS determined that clarification was needed, despite the memorandum because "some school districts have begun denying access to the child protective service (CPS) or requiring additional CPS actions prior to allowing CPS access to children in a school setting without parental consent."
The emergency rule is set to expire Aug. 20, 2016, but OCFS may extend the expiration date. The deadline for commenting on the emergency/proposed rule is July 23, 2016. We encourage defenders to submit comments, and if you do comment on the rule, please send a copy of your comments to the Backup Center.

Court of Appeals Places New Length Limits on Briefs. The Court of Appeals has announced amendments to Rule 500 of its Rules of Practice (22 NYCRR Part 500) to set word/page limits. For briefs generated with word processing, the number of words used in the body of principal briefs in normal course appeals, certified questions, and review of State Commission on Judicial Conduct determinations shall not exceed 14,000. The body of other word-processing-generated briefs, including those in Rule 500.11 submissions (Alternative Procedure for Selected Appeals), reply briefs, and amicus briefs, must be limited to 7,000 words. If typewritten or handwritten, the body of "the principal briefs of appellant and respondent shall not exceed 35 pages; reply briefs, amicus briefs, and briefs in response to amicus briefs shall not exceed 20 pages." According to the New York Law Journal , the word limits are the same as those in the federal courts of appeals and in the First and Second departments. The amendments apply "to all appeals for which the preliminary appeal statement is filed on or after the June 22 effective date."
Rule 500.20(d) was amended, clarifying that "only one request for reargument or reconsideration per party of a specific criminal leave application is permitted." The full Notice to the Bar is available here .


Copyright © 2012-2016 New York State Defenders Association